Those without senior water rights left high and dry

Landowners along small streams like Evans Creek are getting their irrigation water shut off based on Oregon's water-rights law.

Mark FreemanMail Tribune

WIMER — For nearly four decades, Ed and Claudia Wagner have tended to their family orchard of about two dozen plum, prune, pear and apple trees, sometimes to an embarrassment of fruity riches.

They draw their irrigation water from a little Evans Creek tributary called Sykes Creek, just like when homesteader William May first drew water from the creek in 1940.

Then a knock on the door July 17 from Jackson County Watermaster Travis Kelly changed everything. Kelly had a written order for the Wagners to stop pulling water from the creek, instead leaving what trickle is left of Sykes Creek to be siphoned from Evans Creek by neighbors whose lands were in production decades before theirs.

"We've been up here 37 years and there have been years when we ended up stopping the irrigation," Claudia Wagner says. "But this is the first year they came out and said don't do it (irrigate)."

The Wagners' spread is one of 75 properties whose irrigation is now cut off from the Evans Creek system so dozens of other landowners can get all their water based on Oregon's century-old, "first in time, first in right" water law that comes into major play in drought years such as this one.

Upstream of Wimer's covered bridge, only those with senior water rights tied to the property in 1896 or earlier now get what little water remains in the creek. Downstream of the bridge, only properties with water rights on or before 1902 have legal access to the water.

That means the Wagners, whose land has been irrigated since Jackson County first recognized May's right to do so in 1940, don't get a drop of surface water until next season.

Similarly, on the Little Applegate River, only irrigators with priority rights of 1916 and older are getting water.

With more water rights on streams such as Evans Creek than actual water in the creek, priority dates are how Kelly metes out what little water exists when drought dries up streams not supplemented by reservoirs.

It's an "I get all of mine before you get any of yours" that initially favored pioneers over incoming settlers. The water right on the property doesn't change, even after the property has been subdivided into hobby farms or even developed into apartment complexes.

"Most people see the creek and they know there isn't enough water," Kelly says. "Then again, a lot of times we catch people off-guard. They were going to go grocery shopping, then we show up and now they're running around trying to figure out how to keep their garden going.

"But water rights are very non-personal," Kelly says. "It's based on a hierarchy and it's transparent. We have to be very equitable."

In these lands where the mantra of "Whiskey is for drinking, water is for fighting over" still applies, the concept that water rights are tied to the land and senior rights get priority rings true.

"Water laws are fair," says Greg Worthington, a Wimer Realtor and landowner lowest on Evans Creek with an 1896 water right.

"When people buy property, I make sure they're very aware of their priority date and what it means," Worthington says.

Evans Creek is so overappropriated that the most junior water users get cut off even in normal years.

"But I've never seen them cut off past 1902," Worthington says.

Since 1912, Oregon watermasters have been checking maps, measuring stream flows and setting priority dates for irrigators when they get complaints from holders of senior water rights that they aren't getting their lawful amount of water.

Initially, watermasters look for illegal withdrawals, then start cutting back based on priority dates.

In the past, they followed the streams in their pickup trucks with log books and maps that showed who legally deserved water and who didn't.

Now, they use stream gauges, public websites with stream flows posted in real time and Web-based maps to determine whose land has what priority date and where on the river or creek the owners divert their water.

"These gauges are the voice of the creek," Kelly says. "This makes my actions a lot more transparent."

But it's still the watermaster and his pickup truck when the time comes to regulate irrigators on a creek.

Kelly regularly visits the old Vroman Ditch pipe that spans Evans Creek near the covered bridge to check flows.

"We're just verifying that everybody we've asked to turn off has turned off," Kelly says.

And the situation is not something that a little rain like last week's storms can cure.

Even after the rains, the creek still flowed under the Vroman Ditch pipe, not over it.

One of those properties is Farming Fish, an organic aquaponics garden and fish farm where owners Michael Hasey and Olivia Hittner rely on less than 10,000 gallons of recycled water to keep their 265-foot-long greenhouse alive.

A broken tractor meant they didn't plant much outside, and they never bothered to put their irrigation pump into Evans Creek this year. Getting the shut-off order didn't hamper them.

"Our system is pretty much drought-proof," Hittner says. "It's our passion in life to save resources."

That puts Hittner among the rare farmers who don't remember exactly what their priority date is.

"People who make their living off water generally know their water right better than I do," Kelly says.

Landowners also keep track of who's irrigating and who's not.

Dean Wardle watered his 20 acres of pasture and hay last week and he plans to do it again this week. Grousing that it's a low-water year but refusing to call it a drought, Wardle says most junior water-rights owners will get through the summer fine.

"I don't mean to be callous, but there's no farmers left so they're not losing anything," Wardle says. "There aren't many people making a living off the land."

The Wagners don't make a living off their land anymore, but they do want to keep their family orchard around for a 38th season next year.

The couple have two wells, one of which is too sulfury for drinking water, so they're pumping from it to keep the trees fruiting.

"We're doing what we can to keep them going and producing at least a little bit," Claudia Wagner says.

Reach reporter Mark Freeman at 541-776-4470 or by email at mfreeman@mailtribune.com.

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